Gault v. Owings

Dorsey, J., delivered the opinion of this court. The defendants, by their first prayer, prayed the opinion of the court to the jury: that, under the will of Nicholas Owings, the rents of the Fox Rock Quarry did not pass to Beale [197] Owings, the plaintiff intestate, and that the plaintiffs are therefore not entitled to recover in this action: which opinion and direction the court refused to give. Whether the County Court were right or not in refusing this prayer, depends upon the true construction of that part of the testator’s will, which relates to those rents. After devising to his son, Beale Owings, the Fox Rock Quarry, out of which the rents issue, the will proceeds as follows: “And it is my will and desire that the rents arising from the quarry known by the name of the Fox Rock Quarry, be applied to discharge the incumbrances on the same.” This clause of the will, it is insisted, separates the rents from the reversion devised to Beale Owings; and by necessary implication, gives them to the executors of the testator. If the application of the rents had been directed to the payment of the debts of the testator, irrespective of the lands out of which the rents issue, it might have been somewhat difficult to repel the implication of a devise of the rents to the executors of the testator; because to the executors only is confided the ascertainment and payment of the debts of the testator. But by this clause in the will, the rents are not directed to the payment of debts generally, but to the discharge of the incumbrances on the Fox Rock Quarry. To whom then could the rents more appropriately be given to effectuate the design of the testator, than to him to whom the reversion was devised ? He was as competent to make the application of them, directed by the will, as the executors of the testator; and much more deeply interested in their being faithfully applied. And further, it is not to be presumed to have been the intention of the testator to diminish the means of collecting the rents, and the certainty of their application to the object by him enjoined, which certainly would be the result of the implication contended for. Had the testator, by his will, have separated the rents from the reversion, and given them to his executors, the only means of their recovery would have been by an action of debt; but if suffered to pass to the devisee, according to the legal import of the devise, the rents could be recovered [198] not only by an action of debt, but by distress, which is justly regarded as much the more speedy, certain and efficient remedy for the recovery of rents. Of the rents when collected, the devisee becomes, as it were, a quasi trustee for their faithful application according to the will. So far from its being necessary to imply a devise of the rents to his executors, to effectuate the intent of the testator, there is every reason to presume his intent to have been the reverse of that, which, by such an implication, it is assumed to have been. There is, therefore, no error in the County Court’s refusing the opinion and direction to the jury, sought by the appellants’ first prayer. The appellants’ second prayer was upon the whole evidence. The defendants, by their counsel, prayed the court to instruct the jury, that if they find from the evidence that the receipt óffered in evidence by the plaintiffs, of the 5th June, 1840, for the sum of $866, was given by Nicholas Owings, under an agreement that the same should be applied to the payment of rents thereafter to become due from the defendants to said Nicholas Owings, from the Fox Rock Quarry, under the lease of the 11th June, 1840, and the said sum of $866 has not been returned to said defendant by the said Nicholas Owings, or those claiming under him, or in any way satisfied, that then they must allow said receipt, or so much thereof as may |>e now due as an offset to the plaintiffs’ demand, which instruction the court refused to give to the jury, but gave to. them the following instruction, to wit: “But if the jury find from the evidence, that the defendants are chargeable with the Rubble or offal stone, taken by them from said Fox Rock Quarry, and that they have taken out the amount of said receipt for $866 in said Rubble or offal stone, then the said $866 is not to be received in bar of this action, notwithstanding the jury may find that said $866 was agreed to be applied to extinguish the rents of said quarry.” The testimony in this case being all received without objection, unless it be on the ground assumed in the court’s instruction to the jury, it does not appear that any other reason existed for the court’s refusal to grant the defendants’ second prayer. [199] It becomes our duty, then, to inquire into the legality of the court’s instruction, as regards the liability of the appellants to pay for Rubble stone. This liability the court referred to the decision of the jury; and in this we think the County Court erred. It is a wise and well-established rule of law, that the true construction of written contracts is to be declared by the court, and not submitted to the finding of the jury. In the lease in question before the court, sufficient appears upon its face to show what was its true intent and meaning; what was the intention of the parties in entering into the contract. The lease describes the appellants, (the party of the second part,) as residents of the City of Baltimore, and partners in the trade and business of quarrying, cutting and selling granite stone, and carrying on the same under their co-partnership name and firm of Emery fy Gault, and transfers to the appellants “the license, right and privilege of quarrying, getting out, working and carrying away granite stone from said quarry or quarries, to the use and benefit of said Emery fy Gault, or the survivor of them, and the executors, administrators and assigns of such survivor, for the term of six years, they paying for the stone 1J cent per cubic foot.” The very fact of the stone being sold by the cubic foot, in the absence of all other confirmatory parts of the lease, demonstrates that the stone sold and sought to be obtained under the lease, were dimension, not Rubble stone,—the former being always bought and sold by the cubic foot,—whilst it is believed, and may be safely asserted, that in Maryland no instance exists, or ever did exist, of Rubble stone being sold by the cubic foot. Such a rule of admeasurement is wholly inapplicable to Rubble stone, and is applicable to sales of dimension stone only, which are never sold by that species of measurement, if to be measured at all;—whilst Rubble stone is universally sold in the mass, or by the perch. This interpretation of the contract between the parties is strongly corroborated by the fact, that the appellants are stone-cutters in the City of Baltimore, and consequently use dimension stone only. Had they been stone-masons, there would have been [200] some plausibility in the argument that their contract embraced Rubble, as well as dimension stone. The County Court did not err in rejecting the first prayer of the defendants below, but there is error in its'refusal of the second prayer, and in the instruction which it gave in relation to the Rubble stone, and therefore its judgment should be reversed. B it no procedendo should issue; because there appears to be but three-quarters of a year’s rent due on the lease, for which any action could have been sustained by the plaintiffs below, and the set-off, to which the said defendants have shewn themselves entitled, far exceeds that amount. judgment reversed.